Texas Will Lead!

In the month following Texas Governor Greg Abbott’s announcement of the “Texas Plan”—a series of nine proposed constitutional amendments to rein in the federal government and restore the rule of law—two recurring critiques arisen. First, the governor’s plan has been dismissed as a “long shot.” Second, it is held by some that, were a Convention of States under Article V of the Constitution actually to be called, it would result in the “mayhem” of a “runaway convention.”

Forbes Opinion - Tom Lindsay, Contributor

Feb 23, 2016 @ 11:09 AM

Texas Republican Governor Greg Abbott fears the people less than he does the federal government. (SAUL LOEB/AFP/Getty Images)

Note that these criticisms are raised by some who agree with the governor’s fundamental assertion—that all three branches of the federal government have overstepped their constitutional authority. The U.S. Supreme Court has abandoned the meaning of the Constitution, especially its Interstate Commerce Clause, thereby allowing for federal intrusions into the lives of the states and their citizens that would have made the Founders blanch. The U.S. Congress has allowed, even enabled, these judicial usurpations of its rightful authority (in a democratic republic such as ours, the legislature necessarily predominates, or used to, because it is the branch closest to the people, who are the ultimate source of authority in a democracy, or used to be). And the Executive Branch has flouted the constitutional authority of the Congress through Executive Orders as well as through deciding which duly passed laws the administration will support and which it will not—despite the Constitution’s requirement that the president “take Care that the Laws be faithfully executed.”

As a result, our profligate federal government has not only burdened this generation with catastrophic debt, but also our children and grandchildren. It has ignored John Adams’s cautionary counsel that, “the consequences arising from the continual accumulation of public debts in other countries ought to admonish us to be careful to prevent their growth in our own.”

No surprise, a recent Gallup nationwide poll, which asked respondents to choose among big government, big labor and big business, found that 69% of those surveyed identified big government as the “biggest threat to America’s future.”

What can be done? And by whom? Clearly, the federal government is unable or unwilling to rescue the country from the abyss into which its power-grabs have thrust us. What is left, then, under the Constitution, are the states, which, through employing Article V of the Constitution, can call a Convention of States to propose to the country amendments to reverse our decline. But while a growing number of Americans agree that the federal government has gone rogue, there is disagreement about the utility of calling a Convention of States to rein it back in.

The “long-shot” critique of the Convention of States movement argues that it wastes precious time and resources in pursuit of an unrealizable goal. There is a historical basis for the critics’ skepticism. Despite being included as an element of the original Constitution, a Convention of States has never occurred in American history. And for good reason: It takes 2/3 of the states (34) to call a Convention, and it takes 3/4 of the states (38) to ratify an amendment. These are tall orders, and well they should be. After all, the Constitution was passed by supermajorities, and hence it is just that the Constitution requires supermajorities to ratify amendments.

The critics are correct, then, that a Convention of States is a long shot. But the truth of this first critique undermines the second objection—that a Convention of States would become a “runaway convention,” in which rogue delegates hijack the agenda, perhaps with the complicity of the U.S. Congress, which, under the Constitution, calls the Convention after state applications hit the target of 34.

The second critique capitalizes on the fact that the Constitution, though enabling states to call a Convention, provides little guidance about the process governing it. Critics fear that the very Congress that is part of the problem will use its power over the Convention process to prevent any problems from being solved, and perhaps even create new ones.

This is a reasonable fear, but here’s why there is no cause for worry: Consider where the logic leads from the correct “long-shot” description of the Convention of States. If 34 state legislatures actually were to formally agree on a Convention call, it would be the first time in history. When we reflect on the magnitude of such an accomplishment—all the coalitions formed in each state and across the country, the massive increase in public awareness of the crisis that would result, and the effect of all this on public opinion and voting behavior—we see that the well-intentioned concerns of those fearing a runaway convention miss the mark. They miss the effect on the U.S. Congress, the Executive Branch, and the U.S. Supreme Court of such an unprecedented popular movement. Faced with an historic uprising by We The People, unscrupulous delegates and/or Congress would be unable to pull strings from behind closed doors without exciting a national uproar.

More directly, ratification of any feared rogue amendments would take 38 states. This means that merely 13 states can veto any amendment. Does anyone believe that there are not 13 states in the Union that would block any amendments but those called for by the 34 states to rein in the federal government? If we cannot count on there being constitutional fidelity in even this small number of states, we would be forced to concede that America’s experiment in self-government has already failed.

To ensure that it does not fail, Governor Abbott has issued his call for a Convention. He fears the people less than he does the federal government. He worries less over a runaway convention than over our runaway federal government.

Finally, critics also neglect the historical evidence that demonstrates that calling a Convention of States can “fail” and still succeed. There have been instances in our past where states began movements calling for constitutional amendments. Reading the signs of the times, the U.S. Congress, jealous of its prerogatives, has “taken over” by proposing the amendments itself. Under the Constitution, either 2/3 of the states or 2/3 of both houses of Congress can call for amendments.

If such congressional action again preempts the current call for a Convention of States, the states can lose and still win, for the requested amendments will see the light of constitutional day.

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